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    45 views18 pages

    Judgement Dated 03.03.2023

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    Shruti Agarwal
    judgement dated 03.03.2023

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    © All Rights Reserved
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    2023 LiveLaw (80) 161 INTHE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION MAR, SHAH: J, MM: SUNDRESH; v. MARCH 03, 2023, APPEAL NO, 831 OF 2023 (@2 SLP(C) NO, 202 inisty of Consumer Affairs versus Or Mahindra Bhaskar Linaye & Ors. Summary: - Supreme Court upholds the Bombay High Court judgment which struck «down provisions of the Consumer Protection Rules which excluded persone with {10 ‘years “professionel experionce from. appolniment to. ‘State Consumer Commissions and District Consumer Forums = for aapointment of Prosisert and Members of the State Commission and Distriet Commission, the sppotntment sha ‘be made on the basis of performance in writtantost coneiating of two panora: Consumer Protection (Qualification for appointment, method of recruitment, Procedure of appointment, term of office, resignation and removal of President and mombers as District Consumer Commissions ‘SC judgment in Madras Bar Association judgment which held that lnwvore with 10 Years of professional experience are eligible for appointment as Tribunal members ithe High Court in the impugned judgment and order has rightly observed ana {hat Rule 32)(b), Rule 42)c) and Rule 6(9) of the Rules, 2080 which are contary to the decisions ofthis Court in the cases of State of Uttar Pradesh and Others V7 Ail tar Pradesh Consumer Protection Bar Association: (2017) 1 SGC 444 and the Madras Bar Association Vs. Union of India and Another, (2021) 7 SCC 69 are Unconstitutional and arbitrary. (Para 64), Consumer Protection (Qualification for appointmert, method of racrultment, Procedure of appointment, term of office, resignation and removal of President and Mombers of State Commission and Disirict Commiss on) Rules, 2020. Kale 62) lacks transparency and it confers uncontrolled discretion and excessive power to the Selection Committee. Under Rulo 6(9), the Selection Gommittos le empowered with the ‘uncontrolled discretionary power to delermine its procedure. to recommend candidates to be appointed as President ard Members ofthe State ancl District Commission. (Para 65), Consumer Protection (Qualification for appointment, method of recruitment, Procedure of appointment, term of office, resignation and removal of President ona Mombers of Stato Commission and Distriet Commission) Rules, 2020. ill the amendments are made in order to do complete justice under A. 142 we direct tat {n future a person having Bachelor's degree from a recognised university and who 's a person of ability, integrity standing and having. special Knowledge arc Professional experience of not less than 10 years in censumor affairs, lu, public fairs, administration ete shall be treated as qualified fer eppointment as Procident {and member of State and District Commission. We also direct that for appointment {he appointment shall be based on the performance in 2 papers. Gulifying meskes ‘be 50% and there must bo a viva for 50 marks each, Par 22) ith GIL APPEAL NO. 632 OF 2023 with GViL APPEAL NO. 693 OF zazs Poo For Parte: Mc. Sidon Ohermachar, Aav. Mt Aad fondna Pande, AOR Me, Bharat 8390, ‘i.e Sourev Sng ha he Arnah Kumar AOR Ws. Asha Share, AOR Mr Tshey Mando, ‘Ra. he Sneaye Noho, Ad. tr Sevjooy Roush, Avs. Manta Honan, Aa. Me. Shaya ‘Boast, Ao He Minar Chere, Aa. Deverat Sigh Ad. Ms. Mushan Surana, Ac. ‘anu dea, Ar Uy Prakash Weruntar Ay ls Mal Usay Warum, ac. Deval ri, ‘or te Prova Sunes Paint, Aa. Me Arta Chauhan, AOR Me Yat selon, Ad i Sunt ‘amar Stara AOR Nes Lanbel& Leplem AOR hs Kasiee Label A Ar Ramesh Prss00 Goya AOR a Gagan Sarg JUDGMENT MLR Shah, J 1, Feeling agriaved and cisatisfied wit the Impsgned common judgment and order ‘dated 14.09.2021 passed by the High Court of Judicature Bombay at Nagpur Bench at Nagpur in Pub Interest Ligation No, 1/2021 and Wit Pettlon No, 1088 of 2021 Bey which, the Division Bench of the High Court has stuck down and has deciared Rul 3(2)b), Rule 4(2)(e) and Rule 6(8) of the Consumer Protection (Qualification fo, ‘appoiniment, method of recruitment, procedure of apeointmant, term of offic, resignation ‘ne removal of Prasigart and Members of Stale Commission and District Commission) Rules, 2020 (hereinatter referred to as the Riles, 2020) as arbitrary, unreasonable and Violatve of Atle 14 of the Constitution of india, the Winisty of Consumer Afr, Union india and State of Maharashira nave preferred tnepresent appoats 2. In exercise of poware conferrad by Sections 29 end 43, read with clausos (a) and (of Sub-section (2) af Section 101 ofthe Consumer Protecton Act, 2019 (hereinafter feletred to a8 the Act, 2019), the Ministry of Consumer Affairs, Food and Public Distribution (Deparment of Consumer Affairs) framec the Rules, 2020. 2.4 Rula 3 of Rules, 2020 provides for qualifications for appointment of President and ‘members of the Stato Commission. Rule 3(2)(b) provided that a person shall not be {Qualified for appointment as a member of the State Commission unless he possesses @ Bachelor degree from a recognized university and le a parson of ably, integrity and Standing, and has special knowledge and professionel experience of not less than twenty years in consumer afar, law, public afar... oO 22 Ruled of Rules, 2020 provides fr appointmentof President and member of istic ‘Commission, Rule 42)(c) provided that 9 person shal not be cualfied for appointment as. ~ ‘2 member of the Disict Commission uniess he is 2 person of abiliy, Integrity and Standing, and having special knowledge 2nd professional experience of not less than fifteen years in consumer afi law, public af. 23 _ Rue 6 of Rules 2020 provides for procedure for appointment. Rule (9) provided that tne Selecton Commitee shall determing its procedure for making itsrecommendetion beeping in view te requirements ofthe Slate Commission or tha Distict Commision and ‘fer taking into acount the suitably, record & past parformance, integrity and ‘adjudieatry experience, 24 Rule 3(2}(0), Rule 42) ene Rule 68) wore te subject matter of challenge before the High Cout being unconstitutional, erbtrery end volative of Anicle 14 of te CConatiton of nai, Rule 3, Rule 4, and Rulo 6 reads 28 under: = 3. quateatons for appointment of President and members ofthe State Commission — (GVA porson shat pot be quafled for sppontmont se Pasdent, unless he Is, or has been, 3 ‘hide’ ate High Cour 20| Eby yeobegan shal net be quite for appointment as amember unis he sof not ess than ‘ory years of ge ard postessos fn, or txpatonce ot as ten yr as presiding ocora dt cour orf any ttural St equvalent vel or combined service as auth inthe deta eat ate Provided tat not more tay percent of such members spl be pein or Peay, aeaMers Saree from a recognised universty and ia person of aby, interty ard frsiba, and hes special inowedgo and professional experiance of tel eke rhe tes as anagarne! sais ow, publ alas, admiisvabon, scononics, commerce, ndvsty, Pees "management. enginesrig, technology, public health cv each {3)__Atlesstone member or the President o ne Stato Camnason shall be @ woman, sortangntons for appointment of President and member of District Commission —(1) A R22 Balnat be qualita for appointment as Present urletaels orhac been aeons fobe a Dismet Judge 2) Aperson shal nat be quaited or sppointnont as member nls he (3) Is ofmot ies than thy years of age; 15) possesses becheiors degree toma recognized Univesy: and Heese 3 Bose" of ably, Inteanty and standing, and having spedal Knowledge and Dofssiona experiance of ot less than Men years in carsUmelating tan eae eh pubie neat, Seonomies, commerce, inst, thence, management englheseay eer, public heath or medine (9) Atleast ono member or the President of he istict Commision shall be @ veman, Beceem of sppontment—(1) Te President and mambus of he State Gorarision and SRGEHE Commiaslon shall be appoited by the State Goverment one eocrre ae 8 Selecion Commies, consisting ofthe folowing parson, revit armas Utfee F te Hoh Cour or any Judge of he High Cout nominated by him Chaiperson; (0) Secretary in charge of Consumer Aas ofthe Sie Gowemment~ Member, (©) Nominee othe Chiat Sooratary ofthe State—Hember Te erere yGesrtar in charge of Consumer Alfars of theSate Government shell bo the ‘convener of he Selacion Gomes (earch SPpaniment fhe Presisnt or ofa member shalbe valid merely by reason of any (Bran oF absence in the Selacton Commitee ole than © vacancy te eben oF ae Chalten, hare Me Rosets of appchiments sl be nated by theStaie Goverment a east sx months elre he vacanay sis, tal Be fae vacant dito eelgnatin or deat of amb cea of &hew post he rocess fe filing tho post shall be ised immediatly afer post hes talon eee oe ‘eal. as the cate may be 16 the tverisement of vacancy invtngapptzatonstor he posts fom elie candidate ‘SRal be published in leading newspapers and creuleed in such clr menos oe ane ae ‘Govemmont may deem epprepeate, 1 it Stuy ofthe applications receNved 8 the lata specified for recep! of such Spplcatons, sof ehable candidates along wit nar appeatone sal be cece eae Selection Commie 202 (@)_ The Selecion Commitee shat consider al heappications of else applicants refers fo tana considers necessary may sortie he applcarts In accordence wn such ete as limay deode, i (3). The Selection Commits shall determine its procedureor making its recommendation Keeping in view he reqarement of the Stata Consmasion or the Distrct Commission and ater taking ito scccunt te suiabily, record of past pefomance, itegrly and aduciatoy exporience. (20) Te Selection commites shall recommenda peel far Inthe order of met forthe corederaion ofthe Slate Goverment. (a3) The Slate Goverment chal verily or cause to bevaiid he eredents and aniceserts blihe esmmendee sandeatos a2]. Every appointment of « Preiser or member eal besuject ta submission of ooo Of physical nee a inlcateg [nthe annevure appended to these rules, duly signed by 2 clf=) ‘surgeon er Dstt Medial Offer. (23) Before appointment he solace candidte shalfuish an undarang tat he does not {nd wal pat have any such fnanci or eter intrest sisal to fle prejsealyhis uncons fe President or member” i 2.5. The validty of the aforesaid rules, namely, Rules 3 (2(b), (2c) and 6(8) were ‘challenged before the High Cour by the orginal wrt pettioner on the folowing grounds: of cence for appointment {2} Unconioled dseretion and axcessive power to the election committee to etormins is procedure to recommend candidates to be eppointed | arbitrary, Unreasonable ann volatlon of Article" of tha Conetution of Indie (b) Considering the nature of work, the candidate's competency needs to be tested Bolore being recommended forthe appeiniment to discharge judicial functions, Therefore the candidates wno are being appointed must havea legal background. {c)__ In the absence of the appoinment of competent candidates, the object of the Consumer Protection Acts ikely to be Frustrated. {c)__The present and members ofthe State and Cistict Commission ore empowers) ‘withthe ponies ofthe Court. In the appointment of Jucical Magisate FirstClass (JMFC the candidates are tested by writen examination and viva voce, a (e}_ The Ora model rules approved by this Honsie Court and ecaepted by ell the parties are nol adhered with, Hence, contrary tothe drecions of this Henle Cour. (f)_ The taneparency ang selection citeria are absent inthe ssid rules. (6) _ In absence of transparency in the matter ct appointments of Chairman and ‘Members, theres trang apprehension of polical and executive interference. 2,6 Ihwas aleo the case on behsl ofthe orignal wi peitoners before the High Court ‘et this Court in the cage of State of Uttar Pradesh and Others Vs. All Uttar Pradesh Consumer Protection Bar Association; (2017) 1 SCC 444 (hereinafter referred to 2s the UPCPBA),cirected to frame model rules under tne Consumer Protection Act, 1966. ‘Accordingly, mode! rules wera framed by ths Court ard accepted by all the partes. was ‘iso the case en behalf of te original wet peitioners that by adapting the model rues, frany states notified the Consumer Protection (Appointment, Salary, Allowance and Conditions ef Service of President and Members of Siate Commission and District Farum) Russ, 2017 (hereinafter referred to as the Rules, 2017) on 18,05.2076. twas submited {hat model rues 2012 wore already in exislancs in ne State of Maharashtra mage on ‘faced trom tho judicial members af the tribunals and standards opoied for spotang Suthmembers, shoulé boas nearly as posible as appleabeto the appartment ot wages exercising such powers. Mat thereatar, following the decs ons cfihie Goon he oes ofttacras Bar Association (supra) and UPCPBA (supra), he High Court iss ooncloneg and passed the fina order as unr: - “Te Pubic intrest Lisgaton No. 11 of 2024 some |. The Writ Pticn No, 1006/2021 i party alowed Ui. Nis eld and decared tat Rule (20), Rule 42) () end Rule 60) ofthe Ruses of 2020, ere aire unrsatenable end volte of Acie 14 ofthe Conston of heise he eee ‘recorded heron above and hence ae quashed and sm asic, ce inion of Inia is directed to provide or aporopitly made Rules a3 subettuts for Rule $2), Rule 4(2¥c) and Rule 6(8) of he Rules, 2020, declared urcanctutnal eons os {hg bteratons made in tne judgment, win fou weeks rom the dale ofthe eager oo rer, ope tacaney oles dated 2nd February, 2021 issues by the respanant no. 2 for intng eaten forthe post cf Members a he Site Commission ancProsidon an eres eine Distict Commision, i hereby quashed and set sca, 20H Law. sic The process of elation of Members ofthe State Commision and President an he Members Tinea Commission iniledin pureuance othe vacancy note dated 2nd February. 2021, stands cance va Fresh proces of eclction of members ofthe State Conmssin, Present an the menibars THEe Sella Gormiccion be initated in accordance wih ine amendes Fules and completed at {he oars! os dracted bythe Horble Supreme Court fF va. thismade cles that we have not deat wth he val of appoitment made of the President: « Ur State Commission, Manarashiva iat; be No orders ost cost.” 27 Thelmougned commen judgment and order passed by the High Courtis the subject matter of present appeals. 3, Sha, Verkataramanl, leatned Atornay Genet for Inela has submited that fi te matters were heard by this Cour, on 17.11.2022 and 18.11.2022, where this Court ths of the prima facie view tat Rule 6(9), whic deals with the procedure of appointment Ha een en ciseretion in the hands ofthe selecion commitiee, and that there ought Mee Soen some objective criteria on the basis of whieh the finess and suitably of ra idses be Tested, such as a wien examination itis pointed out that based on the cane ere tat fll rom his Court on the previous dates of hearing, the mater was care rjored by the Government and pursuant therto, a meeting was called betwaen the Titan ot india ond all the State governments to conse the desieblty an feasibly of tondveting a witten examination for appointment to he State and Distiet Commissions orn te altemata, 1 consider es to whether rules or culdeines cen be made which would can aa clsceion avalable fo tne Search-cumSelection Conmittess whi carying Out Sonownmente iis submitid that in fe course of dacussions between the States. twas eae nal moet siales ware notin favour of conducting writen tests. It is subrnited Tere Nesed onthe uiseussion in the ead mactna, it was observed that @ writen raraston fr appointments of members of bunalsas a unitorm policy would be nether {easble nor desirable, duel, inter af, the folowing reasons {The umber of vacancies to buna per yor very lw and n some tibunl or Uy se dg would not be economical or praceal fea io conduct an examination 4 vo oe posts. ‘uy Most sbunale requre appointment of mombers vith expertise in vaie relevent Fe Si earn, economies, ln, soci, france, telecom, elo, and so On. cr a cous grantor with a common syiabus woud not be posible anid ena ay ave ‘roe wiifloent examination foreach diferent ares cfexperie, which would make the whole proves arvay and unvely fit Comseten, eminent, nd succost parsons aga over five or forty or even Oy ay A Sarat wrt wrten examination and ten have their marks pubied epeny, ACh rep Sovoade lage numberof people whe may be desirable fom applyn th) Persons wth experience of fitaen or breny years fay no longer Nave Ihe rears (sitet gug ils, anda writen examination may unduly Favour academics researchers Rear aie oe who are the fold pracicly orn corporate envronment orn 328 sermon academic el, (0) Conductng a witen examination may lengthen te etre process of appoinine, {9 seat tos tonne account of he requrement of aavertsomen, pub robe, re Brea ete eg walcaton of sosuient, 1B ipu, tax ang medal report and fn § ot appstons hfe Selector commie. Ths'may end up Irereasing fe rurber of caries inthe Wounale, which isnt desiobe lesserthan te numaer of poss eiveriass in tng Up ws vacant poate Shans conta MOM tauren of a wien cxanaon across tibunas fas nt pereone wou tangy oo tal 8 oun egy otra ra aaa eae and zine Of eonsisraton For instance saver! ponte Gon cae eee re renal nat be appropiate f subject ages af he Sumrane coe ue eramicaon cual vey ev poopie are acualy sighs te ea rar apeciaised tibunes such as TOBA” ov APTEL. aad orice ee aera Scie may not wish to wie exaricatone to leave Woon sees eres, fis woud lead tothe tbunaa fang out on deststie pcos ee sh to jon those rbunals in the apr of puble tee: tac bona yekaitaran. eemad Atomey General ‘or Inda has further submited Sind ang anaes sacussion inthe mesing hation 190% sae ree ees cre aye sion Connie sa be gud hy he kstctors, say be und, by rots he canta Covenant om tine to tne, wna mak aanosanent esses, Die Conmnacanlty 6 spp0miment at Presiden’ or manber nthe Sits oe aes District Commission applicable Winer submited that no far 8s the development of unitorm mesures tb Precacly 2,sPRatImenis in Be Site Commissore and te’ Beta seen oe feoring i at, ember) acs the county is eoncened, he tes Se heuer crite evel ofthe posts, th stautoryfincion fo be eee aes, se ese Poste the very bjocveershned inte Geum eee 2018, & {te considered to be formulstod Sue Cominetion of 2 cancidate for aposinent asthe President or member inthe finout ere aye Det Commision may be based onthe make tees ~ Mien G att 100 mas: The toa marks (100) may tw en oe hee ne 2 eninterviow, an, (i) 40 marks for certain special achievements of scar ae anineicloe tad frmulaton found in ode by this Hrble Court, can be vealed es ‘aninstricion under the above said proview, Fein snlonal behind the proposed distribution of mars in auch a way where the Talane ecSmpanent would ouweigh the citer, fo ensue fe selector ne ee sutebe candiate, given te lave fhe posts and dues atcha ees fae tation o 40 mars for special achievements may be consitered os under: KS (a ‘Waximum | Marking System 1 Nae eg creme Somes our 'h oreo feu] forering neem eros Li) For adeitonal experence of overy 2 year 4 {mark (maxim § meres} In casa of rpesonce 206, a ier Tan 2 years, avira marks | Soe sya jen tae my cow 9 2 be nae see Se rere acre ora | a ‘gy belgie for hs upOse. el ii For Graduate 6 marks Gusineatons (iyrorPost Graduate 6 marks {For Prd -3 mans 5] Pier panie” serie] 17] For every 4 years of guar rereree oF under to contrasts Conatorl bose oar aie sbrted talon an overall eonsieraon af the deiberatlon, ft appoo TEL ae erate Peat ich nat sara Ranckan wl note feasible and SMa neh) be sont suitable measure forthe purpose of selector nile opposing ta present appest Or. Uday Prakash Warikar end Dr TORN 5 oe (poor counsel appeasng on behalf tthe raspeclve responderss Tees Mandal ta rah the tals anc cruetnces ofthe case te gh Coe Te Venere aon declaring Rue 3(2() ancRte 42) and Rule 68) oes. not commited oe sronable, and vlave of Arde 14 offre Consituton of ine. war tls submited thet the bone of contention of he preter respondent = Reve at StSrce an sic caning before te cartes ar berg arpa bighest Sender ims and Distt Gonmissens tis submited nat ne seo) ens a een, 2020 and the procoss adopted Oy the appebant wil lead fe ratios unr J comaten candidates to aduceate te consumer depo eppoiment ot neo ol) te selection commie is empowered vi unconoses submited thal undef deterrin ts procadue inte appoiniment of the Presiden or disralonay poms sad Dated Gomvagsion kis submited that such éelegaton of (inooatalled powers wil cause undesirable resus. a somor of te submigson that Rue (2) ana Rule (2) ane le I) oy 2 apo ray uireasonable, an velate of tice 14 of me Consttulon India tie submited as under: - a arrest the seloton method under Rules, 02° cafes unconated Gacaton 3 cea ati Cine enecion commites io deerrine ts procedures recor re excesive Powe! 1 Tad salty, unreasonable and in ation of Acie 14 of the CConsttution of Inala: eanespradeng te nature of work, the canddae'scompeaney reeds fo Be fsied © sore boing recommended forte appolnimento dacherge judicial functions: aa ihe absence ofthe appotniment of competent candidates te object of the Consumer Protection Acts key to be fresrated, donee escent and members ofthe Stat and Dit! Commission or oer a ease Sour the apporent of sida Magia Fit Cass, oee ithe powers of sled by wen eraminonen ard viva vooe, te similar recede © a ested for appointment Ia the Diticl and State Commissions pea pe transparency and seleotoncrteria are absent inthe Ful, 2020: ‘s) tn absonea of transparency inthe matter of spponiments of CRrmo? and (2) tne tnere is svong appranancion of polfcal and exeeutve interference 2 man (maxrurn 10| 207 4.3 tl further submited that even the Law Commission in ts 272 Report suggested thatthe members of he newy constituted tnurals should possess the quallteaoes skin {© the judges of the High Court and District Cour. Thw Report husher racommonded Uniformity inthe appointments, 44 dis further submitted that as such this Cour in the ease of UPCPBA (supra) (rected to frame model rues under the Consumer Protction Aci, 1988. Fie eusrticy {hal by the sad judgment, model rulas were approved by tia Court and accepted by ail ‘he bates tis submited by adopting the model ues, meny slates nolited tie Consumner Protection (Appointment, Salary, Alwances and Conditions of Service of President ara Members of State Commission end District Forum) Rules, 2017 (hercnellerreferree ta oo ‘he Rules, 2017), iis futher submitted that the State of Maherashirs also scceied ona sPproved the model rules on 24.05.2010 in exarcise ef powers confored under the Provisions of the Consumer Protection Act. 186. It is rine submit that oven prior Mersio, model rules 2012 were alcady in existence inthe Slate of Maharastiva urce Section 30 of the Consumer Protection Act, 1800 and the said rules already ned the Provision of written examination of 100 marks for aspiring candidatontappicarte ts te post of President and Members of Dis Consumer Forum under Rule 16, ~ 45 tis further submited that as observed hereinabove his Court aparoved the uniform ‘model rules for appointment. salary, service condiion etc, for the eFectve adjudicalon ‘of consumer deputes under the Act, 1986. The sald model ules wera adopted byl the Bartes Its submited th juciel functions. There js no. change in the judicial ncons of the President and {heleaislature iso provide adequate safeguards othe consumers due to drastic chenges inthe modem market and the constantly emerging vulnerbity ofthe consumers, Under the Act. 2019, the pecuniary jurscictions of the Dieiict and State Commiscions. are snhenced substantially. Howaver, tere is no substantia change in the scheme with ‘spect o the adjucication a the consumer disputes, Thersfore, consumer commissions aro quash judicial authortes empowered to discharge judical urclone with the gosccote Powers ofthe cour, Including cil and eriminal 48 Its submited that under Section 71 of the Act, 2019, the Commissions are ‘empowered vith te powers ofthe civil cour and under Section 72, the Commissions are empowered with te powers of JMFC. I is submited that despite the above when lhe Rules, 2020 are framed by the Cental Government in exercise of pamers under Socllng {181 ef the Act. 2018 which provides for tne impugned Rute 32)o] and Rule 4[2)6) end Rule 6(8) made the things worse than the prevailing, prior o ules, 2020, 47 tis funher submited that therefore, when the State and the Distt Commissions ae performing the quasijuscie! functions and judicial functins and exercising the powers ol the Court io test the competence ofthe candidate wren examination are tne voce sping candidates would fed to pol Interference and undeserving resi trough such a selection process, Jeg 48 Its urhor submitted that Rule 6(0) provides uncontrolled diereton tothe Selection Committee. Uneontalled ciscreton in the mater of rccrnmendations of candidates to be ‘Sppanted to discharge jutilal functions fs in clear voktion ef Article 14 ofthe Constitution flea tis submited this Court in the case of Madras Bar Association (supra) declares that "atile 14 clearly includes aright to have the persons rights adjudicated by a forum ‘which exereises judicial pawers In an impartial and inéependent manner, consistent with the recognized principle of adjcizaton" It is submited that in he present case under Rule 6(6) he Central Government has granted complete ciscreton to determine the Selection procedure without laying down crea and standards and the same is Uveasonable and arbitrary. 2.3 Its further submited thet even the said provision is also unreasonable on the (yound thet there Is no check and balance under Rules, 2020 over the Selection ommitte. The Selection Comite has absclute disretion in the recommendations of=- the candidates. 4.20_ [tis futher submited that thare are four sources of candidates tobe eppointed 3 resident and members of the Commissions, vz, serving jusicial ofears, retired juicia Dttoers, advocates, or any other Individuals having certain knowledge and experience. It {submitted thet the Rules erect the selection commtoe to take into account suitably, 2 record of past performance, Integrity end adjudcaiory experience. The selection Committee may consider the suitably ofthe retired er serving judicial candidates based fn available record. however, the eutanilty ofthe candidates coming from nonjudicial Sources, cannot be determined without testing the overall competency. is suomiteg that the appoiniments with bas and wihout transparency would frustrate the object of the Consumer Protection Act. 4.21. Its further submited that the Rules, 2020 as such nly the judgment ofthis Court in the case of UPCPBA (supra. 44:2 tie cuboid that as observed and held bythe Court in the case of Madras Bar ‘Association Ve. Union of India & Ane; (2024 SCC OnLine SC 468) in Writ Petion (C) No. 802/202" decided on 14.07.2021 that the parmissbity of legislative override in thisy County should be n eccardance with the principles led dawn by this Cour Inthe eaten¢ of dadlsion which ae as under: - "44, The perissbity of lgilabve override inthis courry should be in acordance wah the preview by his Gout in the aforemerttoned gs well as other judgments, which have bes eles out as uncer: 1} The efect ofthe judgments ofthe Court fn be nulified bys legs act removing the Basis of the oobment, Such law can be fevospectv Retrospective amendment shou be ‘esnonable el arlrary ang pt notbe volatve fs fundamental ints quarantood under the Consttuton. 12) Thetestfor determining th vay of 2 valdtnglegislaon f that he judgment pointing ‘ut the dotect woul not have been passed the aller postion es sought to be tought In By {hs valoating state ested before the Cour ae me ofrendering is judgment nother werd, the defect ponted out shoud have bees cured such tht he bass of the jucgerent pointing out the detects romoves, «|_Nulifcaon of mandamus by an enactnent woud beirpemissibie lagslatve execien {Bee : Sie shegva! (supra) Even inlet actors cant be reversed by © lpslative velo fee. Cauvory Wate Digouts Tribu! (aupra) ard Medal Counc of Indiv. State of Kerala, 2o4 Law. al Tansoression of constiuional Imkatons and intusionine the judicial power by the {palate i oat of the pene of separaton of powers the rule of aw and ot arse ia of the Constiiton of esa 4.13 is further submitted that even the criteria of having experienee of minimum 20 years for appointment of Member in tha State Commission undet Rule 32)b) anc enters Gf having experience of minimum 15 years for appaintment of Member In Distict Commission as per Rule 4(2)c)is absolutely attatary and legal and unconettalonel ‘antary te the provisions of Article 217 and 233 ofthe Constitution of India tis tuner submited thal even the same is violative of te judgment and order passed by this Court Inthe case of Madras Bar Association (suprs 4.34 tis submited that ho High Court has righty quasted the provision of Rule 426) 25 the requirement of having experienca of 15 yoare for a lamer in order to get toe appointment as Momber in Distict Forum/Commission is aroirary ane legal it ie {uibmited that even In accordance wth the Arle 233 of the Constiution of Incl kawyor needs to have only seven years of practice as an advocate in High Court Even ih ‘ccording tothe provisions of Rule 4(t) @ person who is eligible to bo appointed ce Diskict Juége (having minimum experionce of seven years es, pet Arise 288° ct orsttuton of inci) is qualifed to be appointed as Presisant of District Commission, But inorder to be appointed as Member, the Section 4(2\e) mandates a minirut eroseeree 18 yoars which is vilative of Aricle 14 of the Gontsttuton of In £415 Its further submited thatthe scheme envisaged in appointment of President under Rule 31) for President of State Commission has 2 cifrenterterla and thet of Menor Under Fle 3(2).)isctferent and distinc. The person canbe qualied tobe a President {fhe is oF has been a judge of High Cour. However, n oder to gel apponiment os ¢ Member of State Commission the Rule 8(2Xb) mandates a minimum experience cf 16 has ightly declared thal Rule 2(2)b) and Rule 4(2)c) and Rule 6(8) of Rules 2020 oe irowrus, arbitrary and violative of the Aicle 14 of the Constluton of hae wae submitted that wrile holding so the High Court has discussed and considered the ceclvon ofthis Court inthe case of Madras Bar Association (eupr) ‘446, Making the shove submissions and relying upon the above decisions, tis prayed to dismiss the present appeals. 5 ar igaré Shel R. Venkataramani,leamad Atomey General for India, appearing on shal of the appalini(s) and Dr. Uday Prakash Warunka: and Dr Tushar Mencolekor, leamec counsel appearing on behalf a the respective respondent{e) & Byte impuyned judgment anc order the High Court has declared Rule 3(2K) and ule 4(2c) and Rule 6(8) of the Consumer Protecion (Qualification for appaninent, Imathod cf recruitment, procedure of appoiniment, tam of oc, esignatien and removal of President and Mersbers of Siete Commission ang Distt Commission) Rules, 2020 a ‘yoratiutonal, ebivary, and violative of Atle 14 of the Constlution uf ie, Rare 2K) and Rule 4(2) (c) and Rule 6(0) of Rules, 2020 which are dedarse te be Uuneonsttutonal read 9s under: = {3 Quatiteations for appointment of President and members ofthe State Commission {2)A person stall not be qualified for appointment esa mamberuniess he sf ntless thane {oor af age and possesses (0) a bachelo’s degree fom a recognised rivers ant Is @ person of ebilly. ntgry © Handing, and nas special knowledge end professional exarence of nt less than twenty ye in consumer ats, law, public afar, admistatin, ecanemies, commerce, mush, nan ‘hanagement engineering echnology, publ hea cr medicine 4. Qualiications for appointment of President and menber of District Commission —{1 poston shel not ba queted forappointmont as President, ness el, orhas bee, ors duet {bbe Distt Jooae. {@) A person shal not be quafied for appointment as merrber unless he— (@)is@ person of ably, ntagety and standing, and having spacial knowede and professlo Stperence of ot ees than ffeen years in corsumer af, law, pubic tars, administra Score, cnr vty ares, arene eee ween. Puehe rmadiins 2 6. Procedure of appointment {) The Selesson Commitee shall determine its procedure for making t= recommends Keesing inven be requremants ofthe Sale Conmisin or the Ostet Commission end a {aking ino acount the sutebiy, recor of past poformance, inegrty a%d adjudo\ experience 6.41 While considering the correctness ofthe imaugved judgment and oréer passed the High Cour end while considering the consttuiral val of Rule 3(2)(b) and R £4{2)(e) and Rule 6(9) of Rules, 2020, the eater decisns ofthis Court, more partcula the decision inthe ease of UPCPBA (supra) which was under the Consumer Protect, [Ret 1986 vequred tbe referadto, The issue with respect to the cancitons of eigi> for appointvent of norjusleal members was one ofthe lesues before tis Court in ace of UPCPBA (supra). This Cou" eater consiuted » committee presided over ir Justice Arlt Pasayet, a former Judge ofthis Courtio exemine varaus Issues incluc the conditions of etgiity for appeintmant of nee-udcial members. The Commitee | [em report obs0-vod tha he Fora constituted underthe Consumer Protection Act, 1 do not function 28 efecively a8 expected due to 8 2001 organizations! setup; gros ‘nasequate Infrastructure; ebsence of adequate and tines manpower ard ‘lack {Qualified membors" the adjudicating boes. This Court n paragraphs 4to 6 ncted + ‘observed asunder: “4. The aly of residing members, aspacally of nenudeie! members at the State ance levels s poor, One of he reasons i hat the femunerson which s Being pai t neni Thomber.lcovaumer fre vares fom State (0 Site ara foo meagre toatract used tat Most of the sorjude'l members are not even capable of wring cr sitting smal orders Mei locas nancies! members actin union aga the Presiding Offeoy, whle pes Srderscortry flaw, eamaging the retain ofthe aqjudlesting body. The Preise « Fooulk prefera sation where auch nonjusioal members absent themseives rom work i [otha meieal work can be carted ot by the Presiding wsdge rnparally and objectively. POmusieal members do not mainian peualy and ster attend to work sporadically one Weeds Gen The Commies hae observed tha the prabier les in — () absonce of Be ‘muneraton: (i) appointment cf former jue offcers who lack motvation and zest aw, appalrimant of tw ai taretene ie expen, Many oe nonual noma see nee st work ont te sign aders which have baen date byte scans eres Fruensenacomntite hs furished concrete examples of how bureeuerate and potical reuanes hes mered tne selection process asa reaul ot whi Bu uncon eine eee Tang crate Mlecte, Tires instances fomished in the Rapa ofthe Concer ee ‘sting example ofthe state o fas Mnestnagrnee oe make out tha ere has bas conidebe bureaucrat and police ran the "solacton process and functioning ofthe cangumor ore dato oe fete hare aate Commie found that relaives of policans, butssivey sara that hore is dst patil nivence and intaerosce a Consumer Fora fected ac rests in ower he men ‘eau, Satan, & Romtudial Woman Memberciaidoes not ltand the Distt Forum tring oe she hae fo travel around 180/100 km every day Ta Presiden of re enc Coe Preanest 2 Be former Prsident of Ber Aszocaton has been soning teraes a ona SuGhnoniudial Members manage fo ge sslacied and Ron minuee Fea ne os Member, os they calhemesives “Jugee: Fenaparse ten of ereons. a8 Presiding Offcars and as ‘Members of the fora lacks Wansparency vitheut a fxed eriera for hnstenten, ctacircronne,Gowaminent el alo ame witin four months model nies presciting Sess roms fr imelementing te provisions of Seaton 101390) Seclon eC Ho) era ee ZAM) J roged fo the sppciniment of members respecvely of the Eee ee een ‘Cermissins ang Natonel Cemmicuion, Faenuatty [tg Covamment shel whe taming the model ‘ules have de regard to the rena otesve norms for the assuesment of tho ably, knowedge are cea [pier lobe possessed by tne members ofthe respective rah ihe done cease ee Sony, een Povione mentioned above, To model ndes sal pence for he hereon, of SGay, Alowances and forthe condtons of service ofthe members Of fo een Ot masa 2) aia Law, 128.4. Upon the abproval ofthe mode ras by tis Court the Slate Governments shal prosead a Rog model ls oy feming appropriate rules in re exerese of he ruesmaing Powers Under Scion 50 of te Consume Protection Act, 1986; 285, The Natonal Consumer Disputee Redressal Covmision is requestod to formate eciatens under Secion 30-A wth the previous approml ofthe Genial Governmant within 8 Palod of ver montrs tm tay inorder to effecluate the power of saint conto ested Penton Commision ever he Slate Commissions Under Section 24-3) nd respect wr he earonnyatve conv of the Stale Commisslons over the Disc Fora tas of Section Sey fe oelaned his judgment to eftectvel implement te objects and purposes 6 he Consumer Protection Act, 198." 6.2 That thereafter, vide a further order dated 18.05.2018 State of Uttar Pradesh Vs. All iter Pradesh Consumer Protection Bar Association ~ Civil Appeal No. 2740/2007 orted in (2016) 7 SCC 423, thie Court considered the draft model rles which wer {Ramee by ine Union of india. Before this Cour the rragel rules came to be aoceptod {far coundel representing all the partes before the Court. Therefore, this Court drecte. thatthe Stale Goversments hall kame appropriate rules in exercise ofthe rule-making Toner under Section 30 ofthe Consumer Protection Act, 1986 in accordance with the Pe peat iodel Rules submited by the Union ef isi. It appears that therefter meny ‘Statos notes the Consumer Protection eppoinimeni, salary liowenoes ené conditions ‘Sonne of Presiden! end Members ofthe State Conmission and District Forum) Rules, Sor? Rules, 2017 which were adopted provided that in every cases, the selection of Fromberg of the Disiret Fora and State Commission shall bs an the basi ofa writen test tiie gavers (Rules 5 and 7). appear tt even the Stale of Maharashisa also adopted hd spproved the model rules on 24.05.2019 and framed Rules, 20*9 which had a writen Mannion of 200 marks, It provided that State Commission shall hold the final a rarvfaton of 280 marke forthe post of Members. Cut of 250 marks, 200 marks shall be for utiten examination and 50 mars shall be fo vva'voes examination. in the case of Madras Bar Association (supra) decided on 27.11.2020 ~ (2017) 7 SCC 368, th's Court Sircced that while considering Trbunal/Appellals Tibunal and other Authorities {Guaifcations, Experience and ofr conditions of Senice of Members), he Rules, 2020 Hae andes to make advocates with an experience of st least 10 years eigibie Sppohtimert as util members inthe tiounals, Tal hereafter, the Central Governri Peet Tabunel Reforms (Reionalzation and Condlions of Service) Orcinance, 202% rare al tor coneiceration beiore this Court in Wit Petition (C) No. 802/202 decided wrl.07-2021.- 2021 SCC Online SC 463 In the sold dacislon this Court also considereg {he ponmiasiniy of epsiave override. Aer considering catena of decisions of his Court oe dormisstiity of legislative overge this Court observed and held in paragraphs 42 2 ‘44 as under “42 Tho jusgmant ofthis Court in Madan Mahan Pathak v. Union of india (1878) 2 SCC 92 72 reed Seka evutny twas adverts to and relied upon by bat ces, Ar petion wa Fae Ha Court of Caleta fora mandamus drecing the Life Insurance Corpraton (1) Fie a cece we te tems of setbement tea 24.01.1974 read with administate ee aerated 29.08 1374 The wi pition wes alloved by the learned single Judge agains! eave otors Petar Appeal (LPA) wae petrred by th LIC. Dusing to pendency ofthe LA. ‘re Lc (station of Setlemant) Ac 1876 came int fore. The LPA we ease ecient egeleton andthe decision a te learned sngle Judge became fel. eid oe eared ety nae arcaled In & wt potion fhe under Arie 52 by the employees of We Pere SES Bnagwat, speaking for te monty, wae of te opinion that the jxsgment ot he ‘ESiaite ign cout wee hots etee dectoratory adam hiding animos or tax 88 inte $2 Cale et sae can remove the defor polnteg out the judgment. He observed tal te Fedgmont of Pe Caleua righ Cour gave efecto the righ of me pationers by mandames 213 resting he IC to pay annual cash bonus, As ong as th judgment of the lene single Jude ‘22t reversed in appeal, cannct be dlsegarded or jnored The Lic was held tobe boon br (wr of mandamus ited bythe Catutta High Court Jusioa Beg, ins concurent opinion, hes that tho ght which accrued io the smloyees onthe bai of tne mardsmosieued ey he High Cour cannot betsken avay ane droly or inaracly by subsequen ageinioe Heat ctes Macan Manan Pathak (cupr) eam up for iecusion in Si Ranga Match bnttes v. Uies of [B88 1998 Supp (2) SCC 725. Justice Jeavan Roady was of opion that he Macon Ncnan Pathak cave cannot be vested as an sutorly forthe propostan tet mandarx sannct be set fide by a logis ac. Justice Harsara was not nagieerert wih ch vow, Relea ‘he judgment of is Cour in AV. Nachane v. Union ones (1982) 1 SCE HOS, ube Meniaey old that the legal stan taken by Justice Begin the Madan Monan Pathak ease ned roses ‘ajenty endorsemant and twas becauso of tus thal reespociriyglven to te wove ole ‘esl in AV, Nachane was hel o have nulfled the eed ct to wt and wes assoraly lnval. In view of the ciferenes of opinion, the mater wae rtemea to lager Boneh We S ‘normed bythe leaned Amicus Curia that tha eifranos of oprion could nal be recckeo sore ‘ase was gelled cut of cour (2, ln, Vtonder Singh Hooda (2004) 12 SCC 586, this Cout dd ot accep the contention of the netones threin tht vestec rights cannet be laken avay by sevoapectve lopeleton Howaver, K Was observes that taking away of such rghis would be inperrsssbe fries ~ olaon of Articles 14,16 ot any one constutonalprovion The appuisment slecy nace Inimplementaton of «decision of tis Cour were protcted wih th feason that Ye lw tee "parm he lalate to take away weat hae been granfodninplesotation ee hers (eeslon. Suche course Is impermissible” This Court in Gawey Water Desutos Fhal 1068 {100 (1) SCC 86 @) declared the oruinance which sought fo deplace an mri reer posses by the tatty tcbunal as unconstutonal as set ade en favicul Geclon nr erie od thaefore, amounted fa egihaive execea of ual power Won a mcndarmusisteed oy the ‘yore High Cour was soupht to be annulled by a legstaron ths Cour qusties Re cece SR Shegwatv, Stato of Mysore (1885) 8 SCC 16 on the ound that k wea Inpereesoilg lepslatve exercis,Seting at naught a cecson of he Coun wot romeving the daft ponied ‘eutin tne judgment woul gourd th death kel of ths reo lav. The lo ofl woul coose ta have any mearing, Because ten I would be open w the Goverment fo defy lw ane yet to ‘etavay win go Te pornssibity of least overde inthis county st0ud be in sccordsnoe wih the Pcpos laid down by this Court nthe aferementoned 85 wellac cer jginant, walsh Revs bean cule out 28 under jg de set of he Judgments ofthe Court can be nuliledty a ogee act emoving tho fasis of he Judgment. Such law can be relfospacive. Revcxpactve amendment shocd be: ‘aaeonabie and nol a-birary end must not be vleve aie fundamental ights guaranteed once the Censtston, 2 18 fo termining the vay of valdangegsaion is ha the fudoment pining ‘ut the defect woud net neve been passed, theatres positon as ought foe oeuaht Ly \tevalsaing stivocnstd before the Court athe tne ct endeing te wasmene moterwonde the defect pointed cut should have baon cured auch atte ads of the judgement paring oa Ine delect fs omoved, eg

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